The courts recognize that adultery can be very difficult to prove because it is something most often carried out in secret. To address this problem, the court has developed a two part test under which a complaining party must show both inclination to commit adultery and opportunity to commit adultery, i.e. he/she was willing to cheat and had a specific opportunity to do so.
Evidence of inclination may take many forms. It could be as straight forward as pictures of the accused spouse holding hands with or kissing someone other than his/her spouse. It could be a series of flirtatious (or worse) text, email or social media messages that indicate that the accused spouse is exploring the idea of sexual relations with someone other than the spouse.
But, evidence of inclination is not enough by itself. Even if your spouse has done the above and you have evidence of it in the form of pictures or text message or other written communications, you will still have to document a specific opportunity that your spouse had to actually commit the adultery.
In general, the court assumes that when two people who are not related by blood or marriage are together in the same place overnight, it is for sexual purposes. Thus, if your spouse is documented spending the night with someone else of the opposite sex, you have evidence of opportunity. It might seem that proving the opportunity element is easy, but it is most often tricky and expensive. It almost always takes hiring a private investigator to follow the suspected adulterer for several days/nights in order to obtain the specific documentation needed for the court.
I believe my spouse is cheating on me—what should I do?
If you believe your spouse is cheating and you plan to file for divorce, it is a good idea to schedule a consultation with a licensed South Carolina attorney as soon as possible. Evidence of adultery can be fleeting. If you fail to capture it now, you may not get another opportunity to document the adultery. This could be damaging because proof adultery can impact several areas of divorce including the award of alimony, child custody and the division of marital property.